Khalid Sheikh Mohammed v. Lady Justice

The murderous act changed the country forever. The enemy was not a nation-state and did not openly declare armed hostilities, but war it was, and the unavoidable response was war. By committing this cowardly murder, he plunged the country into a devastating conflict that was to last years, if not decades. When everything was said and done, there was literally nobody in the country that had not been affected by the crime. Either personally or through close family or friends, this touched everyone.

When it happened, the entire nation was shocked. Millions of people listened in disbelief as the news spread with the speed of lightning. They were outraged. They demanded justice. They wanted his blood. They deserved his blood.

There was no question as to his guilt or innocence. He confessed to the crime. The entire government, starting with the Attorney General, came out and proclaimed his guilt. The Head of State was personally involved. They promised that he will be tried, convicted and executed for the act of terrorism he has committed.

The outcome of the trial was never in doubt. How could it be otherwise? Who in that great city could possibly be impartial? What judge would put technicalities of any mistakes by the prosecution above the obvious demands of justice? How could a possibility of this murderous thug walking freely away even be entertained, when his guilt was not denied by anyone, including the terrorist himself? When the very top leadership of the country promised his conviction, what doubts can remain?

Yet what does it matter?

Yes, he was not given the right to remain silent, but he refused even to deny what he has done. Yes, he was not given access to an attorney, but what difference does it make, if he confessed? Yes, some unorthodox “enhanced interrogation techniques” were applied to him, but they were not used to obtain confession, but rather only to elicit information about co-conspirators and prevent further similar terrorist attacks. Which it did.

Sure, some rules may have been bent, and some rights of the accused may not have been preserved, but this was an extraordinary case. The accused was guilty. Everyone knew that. He was a terrorist. An animal. A brutal enemy who viciously attacked and brought down one of this nation’s icons, a murderer who planned–but thankfully failed–to assassinate the Head of State himself. Could such a man be allowed to escape punishment simply because some rules were not fully followed? Would that not be a slap in the face of the dead? What is more important, technicalities of the law or bringing the guilty to justice? Does a murderous enemy deserve the same protections that the law guarantees for innocent, law abiding citizens, even when everyone knows he is guilty and even he himself does not deny his guilt? This was not an everyday, run-of-the-mill murder. It was a terrorist act that shook the nation to its very foundation and was to shape it for decades to come. Does not an extraordinary crime warrant some extra leeway to be granted to the prosecution?

At this point, a clarification is in order. The story told above is not one of Khalid Sheikh Mohammed, nor is it about the terrorist attacks on September 11, 2001. This week happens to mark the 75th anniversary of the assassination of Sergei Kirov, the Communist Party head in Leningrad, the beloved leader of the people across the Soviet Union, the bright ascending star of the Party hierarchy who was viewed as a probable successor to Stalin himself.

According to the official documents, Kirov was shot in the head by a disgruntled former employee. The accused murderer, Leonid Nikolaev, was taken into custody by the State Security after trying but failing to commit suicide at the scene of the crime. A trial was held. Nikolaev confessed to everything and named more people. Less than a month later he was shot, together with 13 others.

It is widely thought that Stalin saw a dangerous competitor in Kirov and was behind his murder, but that is beside the point. What is universally known is that Stalin used Kirov’s assassination and the events that transpired as a starting point for his reign of terror. The murder was so shocking to people that nobody was particularly concerned with the rights of the accused or with following technicalities of the law. The idea took hold that if a crime is serious enough, then perhaps some rules can be bent in the pursuit of justice. After all, those accused were Enemies of the State, not regular law abiding people. The prosecutors say so. Even the leadership of the country does.

Granted, Russian mentality has always considered achieving justice more important than following the law in the process of doing so. However, the events surrounding Kirov’s murder were a watershed moment. The dam was broken. The new “Socialist Justice” was born. Once somebody was named an enemy of the State, his rights were few. Yet millions of people were not concerned. “NKVD does not arrest for nothing,” it was said, or “if he was taken, he must be guilty.” Or the most infamous of all Stalin-era admissions of possible so-called excesses: “When timber is cut, slivers fly,” a saying similar to the more familiar “you can’t make an omelet without breaking an egg.”

In other words, in the eyes of the Soviet people, the ends justified the means. Of course, everyone was convinced that none of this applied to him. How could it, since he hasn’t done anything wrong? This conviction usually lasted right until the night visit from the NKVD and the trip to a local prison. In many cases, people spent many years, the rest of their lives in the GULAG, still believing that even though in their particular case a mistake had been made, everyone else there was a real enemy of the State, guilty as charged. And enemies do not deserve all the privileges given to us–other citizens–who are, after all, innocent. Do they?

Which finally brings us to Khalid Sheikh Mohammed.

There is no question that, if our government is to be believed, he was an illegal combatant. Given the hostility of the press to the Bush administration, there does not seem to be much reason to doubt that. Otherwise, claims to that effect would have been voiced, and proof–if any–would have been unearthed. There is also very little doubt in KSM’s guilt in planning the 9/11 attacks that lead to the deaths of three thousand innocent civilians. The man boasted of his role.

Therefore, the only justifiable course of action towards this terrorist would be an imposition of the death penalty. As anyone who can read past the middle school level knows, KSM was not covered by the protections guaranteed to legal combatants by the Geneva Conventions. Even less applicable to him are the protections guaranteed to American citizens by our Constitution. He was captured as an illegal combatant on foreign soil, and he was kept on foreign soil in Guantanamo Bay, Cuba. Like some illegal combatants before him, KSM should have been brought to justice through the mechanism of military tribunals, and if found guilty, sentenced to death and executed.

Unfortunately, the unconscionable decision of the Obama administration to bring terrorists to New York City for trial changed all that.

Once on American soil, Khalid Sheikh Mohammed and his cohorts fall under the protection of the U.S. Constitution. Once on trial in a civilian court, they have all the rights guaranteed by the Bill of Rights and American Justice system to American citizens. They will have the rights to face their accusers and have access to every shred of documentation the prosecution has, including all the classified information that can be used against them, and the security of our country will undoubtedly be compromised. They will have an opportunity to have their cases dismissed outright due to very real violations of American civilian law by the military. Was he read his Miranda rights when he was apprehended? Did he have an opportunity to confront his accusers? Was he given a speedy trial? Was he even given access to a lawyer immediately upon his arrest? We know he was waterboarded — would that stand in any American criminal court?

Even ignoring everything that has already happened to the terrorists, let us consider what will happen to them next. Is it possible for KSM’s attorneys to find impartial jury of his peers in New York City? In America at large? Is there any doubt that the potential jury pool has been contaminated beyond repair? Then, of course, there are those pronouncements of his guilt by countless government officials, with President Obama himself going as far as to promise that Khalid Sheikh Mohammed will be convicted and executed. How can this be characterized as anything other than trying to unduly influence the outcome of the trial that has not even begun? What appeals court in this country would let stand a conviction obtained under such conditions?

What we have here is an unmitigated–and potentially consciously manufactured–disaster. President Obama wanted a trial to show the world how our country prosecutes the worst of the worst. Well, he got his wish, but as a result we now have a very unpleasant choice to make.

In any normal criminal court in the United States, Khalid Sheikh Mohammed’s case would be dismissed. For the purposes of a civilian prosecution, the government has botched this effort irreparably. There is just no way on Earth any American citizen would be convicted of a crime if his uniquely American constitutional rights were violated to this extent. Unfortunately, Obama’s decision conferred our constitutional rights on KSM and his accomplices, and there is just no way around it. So, if we were to follow our own laws, Khalid Sheikh Mohammed walks. That would be an abomination.

Theoretically, however, it can also happen that he gets convicted regardless of all the violations of his new-found constitutional rights, of the contaminated jury pool and of the unprecedented pressure put upon the court by the president’s pre-trial promise of his execution. If that happens, this will have been a show trial with a predetermined result. It will indeed show the world something — that the American justice system is but a tool in politician’s hands. It will mean that if a crime is heinous enough, if the outcry is loud enough, if the need is great enough, then some rules can be bent in order to achieve the desired result.

What do we become if the second option is what happens? Do we tell ourselves that it was the extraordinary nature of the crime that warranted this damage to our system of Justice? That it is only the worst of the worst that this could possibly happen to? That in some especially horrible cases the ends indeed justify the means? Do we try to convince ourselves that none of those rules would ever be bent in case we are accused of something? Because, after all, “they only arrest the guilty” and “this can never happen to me because I’m innocent.” Where do we go from here?

So, which option do we choose as a nation? President Obama, in making his disgraceful decision, left us with two horrible choices: One is a miscarriage of justice, a guilty mass murderer walking free, laughing all the way to the bank while spitting on the graves of thousands of innocent people he murdered; the other is a public demolition of our constitutional protections that will have an effect of acclimatizing American people to sacrificing our very soul if the cause is noble enough.

A free Khalid Sheikh Mohammed, or a rape of Lady Justice?

Thank you, Mr. President.

—————Samuel Fain is a software engineer who left socialism only to find it again, emigrating from the Soviet Union in the early 1990s only to end up in Massachusetts upon arriving in the United States. Sam has since relocated to southern New Hampshire, the “Live Free or Die” state, where he lives with his wife. Sam wrote a few pieces for America’s Right within months of its inception, and began again in February 2009.

Even if KSM and cohorts are found guilty, the protections by the appeals process will have them tied up in court for a minimum of 10 years. Their incarceration will most likely be on US soil at the expense of US taxpayers. This will not be cheap.

Samuel is correct. There is no "good" way out of this idiotic decision by Obama and Holder.

This action by our "leaders" is right in line with a reluctance to prosecute ACORN for flagrant crimes and overturning a judgment against Black Panthers who intimidated voters outside a Philadelphia polling place. (Not to mention lingering questions as to the legality of much of Obama's election war chest.

On a side note, "He was a terrorist. An animal. A brutal enemy…" strikes me as cliched, and unreasoned writing. The man was a terrorist and an enemy. But other than the fact that we humans are part of the animal kingdom, why do so many writers, including this one, use the term "animal" to describe what should properly be called a "monster". Isn't this a linguistic shortcut that we can do without?

I purposefully applied the language used in the Soviet rhetoric directed at "Enemies of the State". Sorry if it rubs you the wrong way, but that IS what was said, and it was important for me to convey the general feel of that place.

Well Sam, while I was reading I was thinking I would be welcoming you to AR, obviously you were here before I found the site.

So Welcome back…What an excellent re-entry.

I can only agree with all the above comments about your article it is an excellent piece and does convey the catch-22 situation very well.

My question since this stupid decision has always been, Just because the DOJ says the trials will be conducted on American soil just how does this translate into all of the defendants shall be granted all the rights of an American citizen?

It is quite possible that I missed something. But it just don't make sense to me that the "location" of the trial automatically grants all the rights reserved for American citizens to someone who isn't.

There certainly isn't any good answer. And I could only "guess" that it is the rape of Lady Justice that this is intended to do rather than to let these people walk.

Sam… Thanks for the response, and confirmation that the use of the term "animal" is rhetoric. It would be interesting to find out when the use of this term started, and why. Is it another example of long term generalization? (Personally, I'll see if I can learn more of the origin of this usage, which I think cheapens both the animal kingdom and the quality of writing. But that's just one animal's opinion….

The way I see it, the comparison of one's opponents to animals goes back all the way to the Greek literature, and even biblical times. "Stubborn as a donkey", "vicious as a dog"…That continued all the way through the Nazi's comparison of Jews to the time as recent as 1980s in the USSR, when we were reading about "animal bare-teeth grin of American imperialism" (not a literal translation, but you get the point).The objective is to dehumanize one's adversary. Once that is done, it is much easier to do things to him that would normally make people pause. After all, if your enemy is just a rabid dog trying to bite you, you are far less likely to agonize over his rights and feelings.

On the other hand, this literary device is not always negative. "Strong as an ox" and "Graceful as a swan" can be flattering.

But it just don't make sense to me that the "location" of the trial automatically grants all the rights reserved for American citizens to someone who isn't.Not all the rights, but certainly the rights in question.

Amendments 5 and 6 of the Bill of Rights specifically guarantee these rights to "person" and "accused". One does not need to be an American citizen or lawful resident in order to be a "person". Unlike, for instance, "people" in some other Amendments, which IIRC have been held to apply to citizens/residents and not just anyone who happens to set foot on our soil. Not so for 5A and 6A.

Sam, I'm not a lawyer, although I've spent years working in the legal field. I believe that legally a corporation or a business organization is considered a "person", so the rights open to our landed terrorists could also be afforded to ACORN, SEIU, or even the P.L.O. (if it tries to bring in money).

As to "animal", I agree that the term is loosely used to dehumanize others. Personally, looking at the qualities of some animals vs. the shortcomings of most people (myself included) I think being called an animal is a compliment.

As one writer put it (shortened version), if you can get up in the morning without drugs or coffee, be happy in the midst of abuse, and show enthusiasm at the smallest of kindnesses, you must be a dog…..

I just finished reading this and wish everyone could have the opportunity to read it, especiallymembers of Congress. I fear that most people haven't thought of thetrials in this way. I tried to cut and paste in order to send it to others, but without success. Maybesomeone else can.

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